Emailing porn at work not automatically sackable, court finds

Nick Toscano

The Federal Court has upheld a ruling that found emailing pornography in the workplace is not automatically a sackable offence.

Two Australia Post workers who were fired for sending porn on staff email accounts in 2010 will keep their jobs after an appeal was dismissed on Wednesday.

Australia's workplace tribunal, the Fair Work Commission, had previously rejected Australia Post's "zero tolerance" approach to sending sexually explicit material at work and found that the workers had been unfairly dismissed.

Australia Post lost its attempt to have the decision overturned in the federal court based on technical grounds.

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The men, who worked at Australia Post's Dandenong Letter Centre in Melbourne's south-east, were among 40 workers disciplined by the postal authority over online activities in 2010.

The activity came to light after Australia Post installed a new software filter on its email system that unearthed widespread distribution of softcore and hardcore pornographic material.

But the tribunal ruled in September that "special rules" could not differentiate sending or accessing pornography from workplace misbehaviour, and that Australia Post should have considered the workers' length of service - between 11 and 17 years - before deciding to sack them.

Vice President Michael Lawler and Commissioner Anna Cribb warned employers they could not automatically sack someone for distributing porn to co-workers.

The commissioners said an "emerging trend" that peddling porn in the workplace "invariably merits termination of employment'' was "inconsistent" with basic principle.

"Accessing, sending or receiving and storing pornography is not a separate species of misconduct to which special rules apply," they said.

"It is a form of misconduct to which the same general principles apply, as apply in all unfair dismissal matters involving reliance on misconduct.''

Australia Post had claimed it would be inappropriate to reinstate the employees, as it had lost trust and confidence in them.

Maurice Blackburn lawyer Daniel Victory, for the workers, said the case was less about the "rights and wrongs" of circulating porn at work than it was about Australia Post's mishandling of the situation.

"A culture had arisen in which there was an extraordinary amount of inappropriate email traffic involving a large number of employees, which occurred over an extended period of time," he said.

"Managers were aware of it and in some cases participated in it and did not take action to enforce the policy ... but then all of a sudden these long-standing employees were dismissed without warning for something that had been tolerated."

Mr Victory said the court's ruling highlighted the importance for employers to stamp out inappropriate behaviour, and came as a reminder to workers that bosses were "watching over their shoulders" when sending emails to and from work.

This story was changed on July 25 to clarify that the Federal Court did not judge the merits of the unfair dismissal application itself. The court ruled that the Fair Work Commission had acted properly in allowing the workers to pursue an appeal.

10 comments so far

Great, how to ensure that workers do not give a "toss" about workplace regulations, and are immune to these regulations.

I hope these same wiseacre judges also never, ever, ever, ever allow a female worker to sue the employer if she turns on her screen and finds hardcore pornography on the screen, put there by workers who have now been informed they can do what they want with hardcore porn at the workplace and get a slap on the wrist at worst...

And I guess it will be judged acceptable by this court if a worker is found masturbating to the porn at work? Not a firing offense? Maybe a double slap on the wrists?

Commenter

JuJu

Location

Pornocopia Postal Services

Date and time

July 24, 2014, 10:30AM

You obviously didn't even read the article. The court said that behaviour that for a long time had been tolerated, and even encouraged by certain managers, was all of a sudden a sackable offence. Any fool can see that is not the way to handle this situation.

Commenter

John

Date and time

July 26, 2014, 8:06AM

What absolute rubbish! Porn at work is sexual harassment and it is entirely appropriate to sack staff for accessing or sending it. They should sack the managers that tolerated it as well. This is an out of touch decision.

Commenter

jezza99

Date and time

July 24, 2014, 10:50AM

Finally some sanity prevails. The current political correctness has gone mad. We're all human, we make mistakes or misjudge things. It's not like managers or corporations are always saints or pillars of our society.

What happened to reprimands and taking ourselves a bit less seriously? The same goes for the people that want to litigate purely because they were rarely exposed to porn or other non work related things. The extremists on both ends need to take a deep breath and learn when to ignore things.

Commenter

John

Date and time

July 24, 2014, 11:06AM

In other words you access porn at work...

Commenter

Patrick F

Date and time

July 26, 2014, 5:33AM

I think its a disgrace that these people had their jobs reinstated. I bet Aus Post also has to bear the cost of the lawyers for the defendants as well.

A workplace isn't a place for watching porn. it's that simple. There has to be a zero tolerance policy to get rid of the 'boys club' mentality.

Do it in your own time in the privacy of your own home. A place of business is just that - for business.

Commenter

Grow up people!

Location

Maroubra

Date and time

July 24, 2014, 12:31PM

Maurice Blackburn: We Fight For Fair...Distribution of Porn

Commenter

GetReal

Date and time

July 24, 2014, 1:23PM

A victory for Mr Victory!

Commenter

Catherine

Date and time

July 25, 2014, 11:30AM

This applies equally to most of the other comments already here:

The court did not announce that "porn at work" is "acceptable". Instead, referring to this specific situation, they noted that: "Accessing, sending or receiving and storing pornography is not a separate species of misconduct to which special rules apply". Even the article's title, if you only made it that far, states that "emailing porn at work not Automatically sackable". That's a very big difference to "acceptable". It's an even bigger difference in the case of a "zero tolerance" policy that is ignored and then suddenly enforced in relation to just two employees.

Perhaps you could find the time to set aside your moral indignation enough to ... you know ... read the article.

Commenter

Neddy

Date and time

July 27, 2014, 9:53AM

One can read the article, one can note the court judgements, one can know workplace behaviour because we experience it and we can know the court decision is out of touch and will allow these filthy habits to prevail at AusPost and other workplaces.What these workers do at home is their business, what they do at work is the employers business. Are the lawyers and the related workers all ready to indemnify AusPost for any litigation brought due to sexual harrassment ensuing from exposure to porn at the workplace?I thought not, clearly not. They would be running for the next rock to climb under so fast that all you would see is the swirling dust...We are all allowed to disagree with a court decision, or is democracy DEAD in Australia?So folks, it's pornocopia at Aussie workplaces in 2014 onwards, may the wrist slaps begin...

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